Exponential Inequalities: Equality Law in Times of Crisis PDF
Preview Exponential Inequalities: Equality Law in Times of Crisis
Exponential Inequalities Exponential Inequalities Equality Law in Times of Crisis Edited by SHREYA ATREY AND SANDRA FREDMAN Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2022 The moral rights of the authors have been asserted First Edition published in 2022 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Public sector information reproduced under Open Government Licence v3.0 (http:// www.natio nala rchiv es.gov.uk/ doc/ open- gov ernm ent- lice nce/ open- gov ernm ent- lice nce.htm) Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Data available ISBN 978–0 – 19–2 87299– 9 DOI: 10.1093/ oso/9 780192872999.001.0001 Printed and bound in the UK by TJ Books Limited Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. Foreword David B. Oppenheimer When the Covid- 19 pandemic began, one frequently heard the phrase, ‘we’re all in this together’. We weren’t. The rich got richer and the poor got poorer (and sicker). Outside of medicine, the professional classes quickly adjusted to working from home (or a second home in the country), remaining relatively comfortable in a suddenly very un- safe world. But for the working class and the poor, and especially for working class and poor women and disadvantaged minority group members, at the intersection of low income/ wealth and disadvantaged status the pandemic was and remains brutal. Professors Shreya Atrey and Sandra Fredman of Oxford, two of the leading theor- ists in the field of equality law (closely associated, respectively, with intersectionality and substantive equality), are to be commended for bringing us this diverse and discerning collection of authors, a mix of leading scholars and new voices from six continents. The essays in this excellent collection document how the pandemic ex- acerbated inequality exponentially around the globe, and how those who were already worse off to begin with sunk ever deeper into poverty and danger. For this alone the book is worth reading. But this is only the beginning. The authors each take up the question of how equality law addresses the inequalities created and/ or accelerated by the pandemic. For all the differences in the substance, procedure, remedies, and theories of equality law across six continents, the answers merge; equality law had almost no application to the inequalities caused by the pan- demic. It was rarely invoked. It was sometimes worse than useless, as it created the false impression that there were legal solutions extant when there were not. For this alone the book is worth reading. But this is still only the beginning. The authors then ask in two dozen voices, as if a chorus, why equality law has failed us in these crises of inequality. Their answers overlap like harmonizing chords. Equality law looks backward, not forward. It focuses on individual harm and indi- vidual rights limited by national borders. It privileges formal equality over substantive equality or equity. It ignores obligations of international law. It rarely keeps up with social change, leaving it reliant on categories that are incomplete. Thus, it generally fails to recognize poverty or migration status or geographical isolation as protected categories. It relies on litigation. It relies on judicial orders that are frequently disre- garded. It relies on lawyers. It relies on bureaucrats. It relies on state funding. It re- lies on cases instead of policy. It relies on democratic participation. It expects those who are rendered voiceless to speak out. The standard of proof is too high. The rem- edies available are inadequate. It generally rejects the reality of intersectionality (ex- cept when White men complain of ‘reverse’ discrimination). For this alone the book is worth reading. But there’s more. vi Foreword It is said that a crisis is a terrible thing to waste. In crises we look for new ideas, new solutions. We test the tools designed to address the crises, and prepare to fix them if required. We become more creative. We do our best work. Read this book not just for the data documenting the pandemic’s inequalities, though that would be enough. Read this book not just for the description of how equality law has failed, though that would be enough. Read this book not just for the critique of equality law, though that would be enough. Read it for the authors’ proposals for reform. Read it for the compelling arguments to protect socio- economic rights, to rethink discrimination law procedures and remedies, to recognize theories of sub- stantive equality and equity, to apply feminist economics, to embrace intersectionality, to take seriously policies of redistribution, to re- examine the meaning of ‘disadvan- tage’, to explore alternatives to the litigation model of dispute resolution, to demand oversight and accountability, to redefine proportionality, and to adopt positive duties. And then do something. David B. Oppenheimer Berkeley August 2022 Acknowledgements The contributors of this book and our research assistants—C helsea Wallis and Mihika Poddar— have been an excellent team to work with. It is their intellectual energy and commitment to equality law that has sustained this project during an otherwise diffi- cult time with the pandemic. The research for this book has been made possible by the British Academy/ Leverhulme Small Research Grant and the Society of Legal Scholars Annual Seminar Fund. The Department for Continuing Education at Oxford has supported this re- search, not least by supporting the team led by Christy Callaway-G ale at the Oxford Human Rights Hub in producing the Exponential Inequalities podcast series, which serves as an excellent companion to this book. Our editors at the Oxford University Press— Alex Flach and Paulina dos Santos Major—h ave provided input at crucial junctures. Our sincere thanks to all. SA & SF Oxford, June 2022 Contents List of Contributors xi List of Abbreviations xix 1. Introduction: Exponential Inequalities: What Can Equality Law Do? 1 Shreya Atrey and Sandra Fredman PART I UNDERSTANDING EXPONENTIAL INEQUALITIES 2. Protecting Workers’ Equal Rights during Crisis and Recovery: Constitutional Approaches in 193 Countries 19 Aleta Sprague, Amy Raub, and Jody Heymann 3. Addressing Intersecting Inequalities through Alternative Economic Strategies 43 Diane Elson and Marion Sharples 4. Social Security, Exponential Inequalities, and Covid-1 9: How Welfare Reform in the UK Left Larger Families Exposed to the Scarring Effects of the Pandemic 61 Aaron Reeves, Kate Andersen, Mary Reader, and Rosalie Warnock 5. The Proportionality of an Economic Crisis 79 Meghan Campbell 6. Intersecting Crises and Exponential Inequalities: The View from Hong Kong 97 Kelley Loper PART II ADDRESSING EXPONENTIAL INEQUALITIES SECTION A: COMPARATIVE AND INTERNATIONAL LAW 7. New Directions Needed: Exponential Inequalities and the Limits of Equality Law 123 Colm O’Cinneide 8. More than an Afterthought? Equality Law in Ireland during the Pandemic 145 Mark Bell
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